MACAU SAR Law and Practice Contributed by: João Nuno Riquito, Bruno Almeida, Bernice Kwok and Kimberley Cheong, Riquito Advogados
2. Initiating a Lawsuit 2.1 Actions Available Against Infringement Civil Actions
According to the Legal Regime of Industrial Property, a judicial appeal against any DSEDT decision to grant or not grant IP rights shall be lodged within one month of the date of publica- tion of the decision in the official gazette, or the date of issuance of the respective certificate (if earlier and requested by the appellant). Subject to particulars, the applicant or the title holder of the intellectual property right in dispute, the claimants, and any of their successors, as well as, in general, every individual or entity directly and effectively harmed by the decision is/are entitled to submit such an appeal. 1.9 Consequences of Failure to Pay Annual Fees Pursuant to Article 51 of the Legal Regime of Industrial Property, lack of payment of annual fees ( anuidade ) is sanctioned with the expiry of the relevant right ( caducidade ). 1.10 Post-Grant Proceedings Available to Owners of Intellectual Property Rights According to Macau SAR law, the scope of pro- tection conferred by the patent shall be deter- mined by the content of the claims, while the description and drawing serve interpretation purposes. Amendments to the content of the claims may only be applied for once, and before obtaining grant of intellectual property rights. After obtain- ing grant, only non-essential elements may be amended. Such non-essential elements refer to corrections that do not affect the characteristics of the invention, the design or models, or consti- tutive signs of trade mark.
Intellectual property matters fall under the juris- diction of civil courts and, therefore, the Code of Civil Procedure is applicable to litigation arising therefrom, in particular in respect of requests for a declaration of invalidity of intellectual property rights, or indemnity claims. Voluntary arbitration may also be entered into by the parties, should they expressly wish to submit the issue to this alternative form of dispute reso- lution. See 9.1 Type of Actions for Intellectual Property . Criminal Actions Breach of intellectual property rights may also entail criminal liability, pursuant to Articles 289 to 294 of the Legal Regime of Industrial Property. For example, obtaining a benefit for oneself or for a third party within the context of a business activity, without the consent of the title holder of the respective industrial property right, is pun- ishable by imprisonment for up to two years or a fine. A fine of 60–120 days would be typical in the following cases. • Manufacturing artefacts or products pro- tected by a patent or semiconductor product topography. • Use or application of methods or processes protected by a patent or by a semiconductor product topography. • Importing or distributing products obtained by any of the means referred to above.
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